1. A Message from Our Chairman

As we embark on a new year, we at KILP are truly thankful for our new clients and especially for our loyal clients and friends with whom we have been privileged to partner throughout the years. We continually try to go above and beyond what you might expect from a law firm as our way of expressing our appreciation.

We are also thankful for our terrific lawyers, paralegals and administrative staff – including many new additions this past year. Our thanks is not just for their excellence and great competence, but for truly caring about our firm and our clients.

2. USCIS to Implement New Immigrant Visa Fee February 1

On February 1, 2013, U.S. Citizenship and Immigration Services (USCIS) will begin collecting a new fee of $165 from foreign nationals seeking permanent residence in the United States. This new fee was established in USCIS’s final rule adjusting fees for immigration applications and petitions announced on September 24, 2010.

The agency said it has worked closely with the Department of State (DOS) to implement the new fee, which will allow USCIS to recover the costs of processing immigrant visas in the United States after immigrant visa-holders receive their visa packages from DOS. This includes staff handling and the cost of producing and delivering the permanent resident card.

Applicants will pay online through the USCIS website after they receive their visa packages from DOS and before they leave for the United States. DOS will provide applicants with information on how to submit the payment when they attend their consular interviews. The new fee is in addition to fees charged by DOS associated with an individual’s immigrant visa application.

USCIS processes approximately 36,000 immigrant visa packages each month. Prospective adoptive parents whose child will enter the United States under the Orphan or Hague processes are exempt from the new fee.

3. U.S. Embassies, Consulates in China Will Transition to New Visa Collection System in March

The U.S. embassy and consulates general in China will transition to a “new and improved” visa fee collection system for Chinese applicants in mid-March 2013. As a result of this new system, the U.S. visa fee receipts that applicants currently purchase from select CITIC Bank branches will be phased out and will not be valid after March 14, 2013. There will be no fee increase associated with these changes. The U.S. embassy strongly advises all visa applicants to use all current CITIC fee receipts before they expire on March 14, 2013. “After the expiration date, we will be unable to accept receipts issued before March 14 and refunds for expired receipts will not be available. Visa applicants who plan to apply close to or after March 14 should wait to pay their visa fees until after this date.” The U.S. embassy in Beijing said that specific details on this new way for applicants to pay their visa fees will be announced closer to the transition date.

4. U.S., Canada Sign Visa and Immigration Info-Sharing Agreement

The United States and Canada signed the U.S.-Canada Visa and Immigration Information-Sharing Agreement on December 13, 2012. The agreement will enable Canada and the United States to share information from third-country nationals who apply for a visa or permit to travel to either country. The Department of State said the agreement is intended to help both countries confirm applicants’ identities and identify risks and inadmissible persons at the earliest opportunity.

The agreement authorizes development of arrangements under which the United States may send an automated request for data to Canada, such as when a third-country national applies to the United States for a visa or claims asylum. Such a request would contain limited information, such as the name and date of birth in the case of biographic sharing, or an anonymous fingerprint in the case of biometric sharing. If the identity matches that of a previous application, immigration information may be shared, such as whether the person previously was refused a visa or removed from the other country. The same process would apply in reverse when a third-country national applies to Canada for a visa or claims asylum. Biographic immigration-information sharing is set to begin in 2013, and biometric sharing in 2014.

Under the agreement, information will not be shared regarding U.S. or Canadian citizens or permanent residents.

5. DHS Adds Taiwan to Visa Waiver Program

As of November 1, 2012, the Department of Homeland Security (DHS) designated Taiwan for the Visa Waiver Program (VWP). Secretary of Homeland Security Janet Napolitano said the move was “a major step forward in our long-standing economic partnership with Taiwan.”

Taiwan joins 36 participants in the VWP, which permits visa-free travel for eligible travelers visiting the United States for 90 days or fewer for business or tourism. In fiscal year (FY) 2011, the VWP accounted for 18.3 million visits to the United States, or more than 60 percent of tourists and business travelers entering the United States by air. In FY 2011, 243,186 visitors from Taiwan traveled to the United States.

In accordance with the VWP designation process, DHS determined that Taiwan complies with key security and information-sharing requirements, such as enhanced law enforcement and security-related data-sharing with the United States; timely reporting of lost and stolen passports; and maintaining high counterterrorism, law enforcement, border control, aviation, and document security standards.

As with other VWP travelers, eligible Taiwan passport holders who wish to participate in the program must apply for advance authorization through the Electronic System for Travel Authorization (ESTA), a DHS Web-based system. Eligible Taiwan passport-holders with an approved ESTA may visit the United States without visas.

6. USCIS Offers Guidance on E-Verify Best Practices for Foreign Names

U.S. Citizenship and Immigration Services (USCIS) recently answered a query about potential discrepancies related to special characters in foreign names when using the E-Verify system. For example, the biographic page of a passport does not recognize the German umlauted “ü” and will translate it to the machine-readable “ue,” whereas a DS-2019 or I-20 may translate it as “u,” which can lead to spelling discrepancies in records.

USCIS explained that other than letters, the only characters allowed in E-Verify are spaces, single quotation marks, and hyphens. As a best practice, USCIS said employers should enter their employees’ names into E-Verify as they appear in Section 1 of the I-9 employment authorization verification form, without any special characters E-Verify does not accept. USCIS and partner agency systems have means of reconciling variations based on known variations in spelling due to language and culture, USCIS said. E-Verify relies on algorithms to cross-reference employee information, but USCIS said it cannot provide specific information regarding these algorithms.

If E-Verify is unable to initially confirm that a variation in spelling relates to the same person, the case is sent to status verifiers for additional verification under the “name check review process.” Through this process, verifiers may be able to reconcile a name variation without a need to contact the individual. If the variation cannot be reconciled, the employee may need to be contacted, USCIS noted.

7. U.S. Mission in India Expands Interview Waiver Program

The U.S. Mission in India has announced expansion of the Interview Waiver Program (IWP), launched in March 2012, which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer. The U.S. embassy in New Delhi expects this expansion to affect thousands of visa applicants in India.

Under the current IWP, Indian visa applicants who are renewing visas that are still valid or expired within the past 48 months may submit their applications for consideration for streamlined processing, including waiver of a personal interview, within the following visa categories:

Business/Tourism (B-1 and/or B-2)

Dependent (J-2, H-4, L-2)

Transit (C) and/or Crew Member (D) – including C-1/D

Children applying before their seventh birthday traveling on any visa class

Applicants applying on or after their 80th birthday traveling on any visa class

Under the expanded IWP, the following Indian applicants may also be considered for streamlined processing:

Children applying before their 14th birthday traveling on any visa class

Students returning to attend the same school and same program

Temporary workers on H-1B visas

Temporary workers on individual L-1A or individual L-1B visas

The renewal application must be within the same classification as the previous visa. If the previous visa is annotated with “clearance received,” however, that applicant is not eligible for a waiver of a personal interview.

Not all applications will be accepted for streamlined processing. As always, consular officers may interview any visa applicant in any category. Applicants who are renewing their visas may still need an appointment for biometrics (fingerprint and photograph) collection. All applicants must submit all required fees and the DS-160 application form.

The U.S. embassy in New Delhi said that this is “one of many steps the Department of State is taking to meet increased visa demand in India.” The embassy explained that in 2011, consular officers in India processed nearly 700,000 nonimmigrant visa applications, an increase of more than 11 percent over the previous year. Currently, applicants generally wait fewer than 10 days for visa interview appointments and spend less than one hour at U.S. consular facilities in India. In September 2012, the U.S. Diplomatic Mission to India implemented a new visa processing system throughout India that further standardizes procedures and simplifies fee payment and appointment scheduling through a new website.

8. USCIS Expands e-Request Services

U.S. Citizenship and Immigration Services (USCIS) has expanded the services available via its e-Request system. The Web-based tool allows users to ask about applications and petitions submitted to USCIS. Users can now:

Create a service request for all forms to either inquire about the status of an application or petition if it is outside of the normal processing time or notify USCIS about an administrative error in a notice or document USCIS sent.

For Forms I-90 and N-400 only, ask about an Application Support Center appointment notice or other notice the user was expecting to receive.

Access services for individuals with disabilities (508 compliant).

To submit an e-Request, go to the USCIS e-Request USCIS e-Request home page and have the receipt number available.

9. Study on International Mobility of Foreign Recipients of U.S. Doctorates

The National Science Foundation released the results of a study in October 2012, “International Mobility and Employment Characteristics Among Recent Recipients of U.S. Doctorates.” The study noted, among other things, that overall, 20.4% of foreign-citizen graduates with U.S. doctoral degrees reported working or living in their country of origin in 2008, whereas 96.6% of U.S. citizen graduates reported working or living in the United States. Among foreign graduates who did not return to their country of origin, the United States was the most popular destination, with 88.9% reporting living in the United States. For this group, the European Union was the second most popular destination (3.7%), and Asia and Canada tied for third (2.7% and 2.6%, respectively).

U.S. Citizenship and Immigration Services (USCIS) released long-awaited operational guidance for EB-5 cases involving tenant occupancy on December 20, 2012. USCIS said the memorandum is intended to facilitate adjudication of cases involving issues related to the “tenant-occupancy” methodology for establishing job creation in EB-5 cases. The agency noted that the guidance “has been formulated following careful internal deliberation [and] consultation with sister government agencies,” along with a “review of responses to requests for evidence (RFEs) issued in February 2012 to a number of outstanding Regional Center applicants who relied on the tenant-occupancy methodology.” USCIS will apply the guidance to pending cases and cases filed on or after December 20, 2012, that rely on the tenant-occupancy methodology. The guidance does not rescind or supersede other EB-5 guidance.

USCIS noted that among the issues raised in the February 2012 RFEs, USCIS sought evidence that the projected jobs attributable to prospective tenants (which would occupy the commercial space created by the EB-5 capital) would represent newly created jobs, not jobs that the tenant had merely relocated. The agency said that such determinations are necessary to assess whether there is a “reasonable causal link” between the EB-5 enterprise and the job creation that would allow for the attribution of the tenant jobs to the EB-5 enterprise. The RFEs “suggested the types of evidence applicants could submit to make this showing.”

In regional center cases that rely on tenant occupancy models, USCIS requires evidence that the claimed jobs result, directly or indirectly, from the economic activity of the EB-5 commercial enterprise. With respect to indirect job creation, applicants and petitioners must project the number of newly created jobs that would not have been created but for the economic activity of the EB-5 commercial enterprise. “In making that projection, they are to use economically and statistically valid forecasting tools,” USCIS noted.

The agency said that whether an applicant or petitioner has demonstrated that an EB-5 enterprise caused the creation of indirect tenant jobs requires case-by-case determinations and generally also requires an evaluation of the verifiable detail provided and the overall reasonableness of the methodology as presented. The guidance memo gives additional details about the types of evidence and approaches applicants and petitioners may use, and discusses the appropriate language in approval notices regarding the assumptions underlying the approval.

USCIS said it will issue separate guidance on crediting jobs when more than one EB-5 entity may be seeking credit for an identical position.

11. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

William A. Stock (Bill) was quoted in the Wall Street Journal article “House Measure Launches New Immigration Debate” (November 27, 2012). Commenting on a vote in the House of Representatives that would have eliminated the visa lottery and assigned the 50,000 annual visas to a new “high tech” visa category, Bill stated that such limited approaches were not the way to address the many problems in the employment-based immigration system, and that a comprehensive approach was necessary.

Upcoming Speaking Engagements

Ronald Klasko (Ron) and Bill both present panels at the AILA South Florida Chapter CLE on February 7, 2013. Ron will moderate “Litigating Business Cases in Federal Court” and serve as a panelist for the session “E-2 and EB-5, Selecting the Best Option.” Bill will present “Tips for Avoiding Labor Certification,” and on “Employer Compliance and Sanctions: What Advice Should You Give Your Client?” For more on this event, contact Ron at rklasko@klaskolaw.com or Bill at wstock@klaskolaw.com.

Recent Speaking Engagements

Daniel B. Lundy (Dan) and Matthew T. Galati (Matt) spoke at The EB-5 Summit for Attorneys and Developers on December 14, 2012. Dan and Matt discussed issues involved with Regional Center Designation (Form I-924) and Investors’ Removal of Conditions upon permanent residence (Form I-829). For more information, email Dan at dlundy@klaskolaw.com or Matt at mgalati@klaskolaw.com.

Ron spoke to students and scholars at Lehigh University in Bethlehem, PA on November 29, 2012. To view the PowerPoint presentation, click here.

On November 13, 2012, Bill presented “Visa Options for the Entrepreneurial International Student” as part of the Global Entrepreneurship Week sponsored by the Small Business Development Center at The Pennsylvania State University. A copy of the presentation materials is available by emailing Bill at wstock@klaskolaw.com.

Ron discussed “Visa and Permanent Residence Options for MBA Students” at Harvard Business School on November 7, 2012. Ron talked about employment options for the F-1 student, various H 1B visa options, E, L-1, O-1, H-3, and other permanent resident options including EB-5s.

Ron spoke at Yale University in New Haven, CT on November 5, 2012.

Elise presented at Drexel University on November 5, 2012 on immigration options for students and scholars.

On November 1, 2012, Ron discussed “Immigration Options for Scholars and Researchers” at the Biomedical Postdoctoral Programs at the University of Pennsylvania School of Medicine.

Recent Publications

Ron and Tammy Fox-Isicoff’s co-authored article entitled “The Impact of Chinese Quota Retrogression on EB-5 Investors and EB-5 Investments” was the lead story in the January 14, 2013 edition of Interpreter Releases. For a copy of this publication, contact Ron at rklasko@klaskolaw.com.

Bill published “Immigration Reform – Different Approaches to a Divisive Issue” in the December 24, 2012 issue of The Legal Intelligencer. In this article, Bill discusses the key components of the comprehensive immigration reform discussion taking place in Washington, including high-and low-skill immigration reform; family reunification immigration; and support of enforcement, along with a path to legal status for otherwise law-abiding individuals who entered the United States illegally. For a copy of this article, write to Bill at wstock@klaskolaw.com.